Tuesday, December 25, 2007

Lawsuit Breakdown: Conspiracy to Interrogate without Counsel

[The series Lawsuit Breakdown will attempt to highlight the main points of the lawsuit filed on 12/18/07by attorneys for Ryan McFayden, Matt Wilson and Breck Archer with a focus on Duke University's involvement in the scandal.]

The following excerpt outlines the complaints against Duke in the conpsiracy between Duke Police Defendants, Duke Officials Defendants and Durham Police Defendants to "orchestrate the mass interrogation of uncounseled students" (p. 126).

Duke Police and Duke Officials understood and agreed to:(1) Deliver all 47 team members to Gottlieb and Himan, at a designated location, to be interrogated by Durham Police;(2) Create a false sense of security in the team members by minimizing the seriousness of the investigation and the charges being investigated, and encourage team members not to seek legal counsel or to reveal the planned interrogations to anyone;(3) Provide no information to the Plaintiffs or their teammates about the nature or scope of the interrogations;(4) The team members would not be informed that, during the interrogations, every one of them would be asked to volunteer to give their DNA and a “mug shot” photograph, or that a team of CSIs from the Durham Forensic Services Unit (“FSU”) had been mobilized for purpose of taking DNA swabs, mug shot photographs, and pictures of any scars or marks on the team members’ arms and torso.(5) The team members would also not be advised that if they submit DNA samples and mug shot photographs voluntarily, they waive their right to a report of the results of all DNA testing and photo identification procedures as soon as they are available; and, further, that they could have that right merely by requesting a Nontestimonial (“NTID”) Order be obtained for the same purposes; and, further that, absent an NTID Order, a right to that information would not arise again unless the individual is indicted, and then only pursuant to constitutional and/or statutory discovery; and(6) Provide a primary location and/or a satellite location(s) for isolated interrogations of individuals (p. 127) .

The Durham Police were then to report to Duke Police and Duke Officials "with information relating to their charging decisions" (p. 128). Duke Police and Duke Officials implemented the plan according to the agreement. At 7:00 pm on March 21st the players were instructed to report to the Duke Police Department at 3:00 pm the next day, leaving little time to consult significantly with counsel. They were told they were "going in to answer one or two questions" (p. 129), leaving out the plan to take DNA samples and photographs and subject the team to harsh and deceitful interrogation. Ekstrand alleges the advice given to the captains the week before by Wasiolek, the effect of which was "'you don't need a lawyer,' and "'don't tell anyone this is happening, not even your parents'" (p. 129), had been disseminated to the rest of the team. The rest of the team, however, did not know the purpose of the questioning or the severity of the allegations, and certainly not that they could all be charged as accomplices based on their presence at the party. Duke administrators, it seems, were demonstrably well aware of and acting in accordance with these intentions:

The University Officials’ agent responsible for coordinating the mass interrogation was directed to notify the Durham Police that the team members were told of the planned interrogations without sufficient time to discuss it fully with their parents (p. 130).

The disaster that likely would have resulted from these interrogations was averted only by the exhausting overnight efforts of Bob Ekstrand and his paralegal, Stef Sparks.

Next, Ekstrand alleges a conspiracy by both Duke Officials and Durham Police to retaliate against the players for delaying the interrogation to speak with their parents and counsel before being questioned by police.

2 comments:

I still have a hard time understanding how Duke could be so legally inept. Duke has to have legal counsel - yet I can think of no reputable attorney who would not have instantly counseled against the legal mistakes Duke has committed. The only explanation is that Duke either refused to take legal advice or else didn't seek it in the first place. Either way is simply inexcusable for an institution with billions in endowment. If Duke wasn't willing to listen to legal advice regarding students, I would have thought they'd at least listen to it regarding finances - i.e., the fiscal liability of retaining a professor who deliberately flunks students. But since Duke kept Kim Curtis on AFTER they paid out a settlement caused by her, it appears Duke does not heed fiscal legal advice. And since Duke kept the Gang, it appears Duke doesn't heed legal advice in ethics either. Apparently Duke doesn't heed any legal advice at all. And, like I said, that's just something I have a hard time understanding.

It is very important that at least some of the civil lawsuits not be settled. That is the only way the egregious behavior of Duke itself can be exposed and addressed.

This is important to every parent of a college student. We have trusted our most precious possessions, our children, to people whom we are led to believe will protect them, in loco parentis.

The McFayden complaint is clearly not written to be read by a judge in the quiet of his chambers. It is meant to be read as history, by all those who care about the issues of justice raised by the Duke Lacrosse Rape Hoax and its aftermath.

Consider: Virtually every culprit who participated in or enabled the hoax, except Nifong, is still in the position of responsibility from which they tried to send three innocent Duke students to prison for decades. This includes especially Mr. Steel and Mr. Brodhead, who we now see played a key part in the proceedings.

We cannot "move on", yet, because we have not reached a point from which we want to "move on".

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